Jacques: New Title IX rules return due process to campus investigations
U.S. Education Secretary Betsy DeVos is today formally releasing her department’s revised rules governing how schools are to handle sexual misconduct investigations on their campuses.
The rules, which carry the force of law and will be enforced by the department’s Office for Civil Rights, will take effect on Aug. 14 and schools will be expected to comply.
“It’s a historic day for the country and the Trump administration,” said a senior department official Wednesday, calling the effort the “product of an entire team.”
The framework addresses several key areas related to how schools handle instances of sexual misconduct, including: defining sexual harassment for the purposes of Title IX; offering schools guidance as to how and when they are put on notice of an alleged assault or harassment; and defining clearly how the grievance process should proceed.
Revamping these guidelines has been a pivotal focus for DeVos, and the process has taken more than two years. The goal was to create a fair framework for campus assault investigations, which under less formal recommendations from the Obama administration — and championed by former Vice President Joe Biden, led to an erosion of due process for accused students.
DeVos sought to help campus administrators tasked with these investigations find a balance between protecting the rights of both the accused student and the accuser. The impetus for schools to handle these tribunals is rooted in Title IX, the law prohibiting sexual discrimination at schools receiving federal money.
The courts in recent years have also made it clear colleges must do more to uphold the constitutional rights of accused students in these proceedings. Several of the decisions from federal courts have directly impacted the University of Michigan.
The latest ruling came in March. In that case, U.S. District Judge Arthur Tarnow found UM’s sexual misconduct policy to be unconstitutional.
“An accused student’s rights must be guaranteed — not left open for interpretation,” Tarnow wrote.
That's what these new rules aim to do.
The Education Department in November 2018 had released its proposal, but as part of the federal rule-making process, the new blueprint was open to public comments. The department received more than 120,000 responses and took months to read through them and respond. Some of the concerns and suggestions were included in the final draft.
The guidelines call for schools to adopt a variety of requirements, including the following:
- Schools will need to apply “basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination."
- Schools must be transparent about how Title IX investigators are trained, and must post those training materials on their website.
- The Title IX investigator must be free from bias related to the situation and those involved.
- Schools must apply the same standard for determining guilt to all parties involved in investigations, and one university administrator can no longer serve as the prosecutor, judge and jury in these investigations. The final determination would need to be made by someone who wasn’t involved in the investigation.
Some of the modifications made to the final framework address concerns of victim advocates. Universities will shoulder the responsibility for investigating incidents that take place at some off-campus locations over which they have substantial control, including fraternity or sorority houses associated with the institution.
Another change would place K-12 schools on notice if a student notifies any school employee of an allegation. College students would need to direct their complaints to the school’s Title IX office.
DeVos has received harsh criticism from women’s groups and survivors for her efforts. But she has continually stressed she wants justice for all students involved in these situations, and she’s taken action to prove that. Last fall, following an extensive investigation, the Education Department fined Michigan State University a record $4.5 million for its poor handling of the Larry Nassar abuse scandal and required corrective action to protect students.
“In the case of Michigan State, and what we’ve seen with other similar instances at other colleges and universities, is the framework that was in place wasn’t much of a framework," DeVos told me in September. “It wasn’t reliable.”
She said her goal is to create a framework “to ensure schools are serving their students.”